Orange County officials may find it tougher to enforce anti-camping laws against homeless people, after a federal appeals court this week supported what U.S. District Judge David O. Carter has been warning about for six months from his Santa Ana courtroom and the nearby riverbed.

If elected officials do not create enough shelter space for homeless people, they risk not being able to prosecute them for camping on public property.

Carter has warned cities they will need to make significant progress on plans for new emergency shelter or face a possible court order limiting enforcement of anti-camping laws.

The decision, issued Tuesday by the U.S. 9th Circuit Court of Appeals, leaves local communities at risk of becoming impromptu homeless encampments if Carter isn’t satisfied with the level of shelter options in the county.

“We hold only that ‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public,’ ” states the unanimous ruling by the three justices in Martin v. City of Boise.

“That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The Boise ruling builds on a 2006 decision known as Jones, expanding it to include an anti-camping laws. And the new ruling, unlike Jones, is binding on federal judges in California and elsewhere in the Western U.S.

Ahead of Friday’s hearing, county and city officials struck a deal to relocate the county’s largest shelter from Downtown Santa Ana, potentially to a location in an industrial part of town through acquiring what is currently a privately-owned property. The property owners, however, have publicly and privately refused to sell or lease the land for a homeless shelter, so it’s unclear how the property would be acquired.

If the city-county plan does go through, it calls for creating a new 600-bed shelter at a former boat trailer manufacturing plant southwest of Warner Ave. and Fairview Ave., and closing down the existing 400-person Courtyard shelter in downtown Santa Ana and 200-person cold-weather armory shelter in Santa Ana.

Homeless people would be allowed to walk in and out of the shelter, according to Mayor Miguel Pulido, who joined five of his colleagues Tuesday in approving an agreement with the county, known as a memorandum of understanding or MOU. The deal calls for pursuing the proposed site, 3100 and 3120 W. Central Ave., and defines how the city and county would split up to $13.5 million in costs to acquire and renovate the property.

There were more than 2,500 homeless people without shelter in Orange County as of the latest official census a year and a half ago, which is widely considered an undercount. And the existing shelters are full, with officials “cramming” homeless people into them, according to Carter.

Among the problems the judge has cited: Women’s beds put in men’s sleeping areas due to a lack of space, people with serious mental illnesses being triggered by extremely crowded conditions at the Courtyard shelter, and women being told by county officials their option was to stay at an already-over-capacity shelter with men who they say sexually assaulted them.

The county and cities of Santa Ana and Anaheim have all declared emergency shelter crises over the last three months, with county supervisors declaring in June: “A significant number of persons are without the ability to obtain shelter, resulting in a threat to their health and safety.”

And since the beginning of the year, the total capacity for emergency shelter in OC has shrunk by over 200 beds.

Carter has given city and county officials months to work on creating additional shelter capacity, and he wants at least 1,550 new shelter beds. So far, however, no new shelter beds have come online for single homeless men. The new capacity has been 60 new beds for women at the WISEPlace shelter in Santa Ana shelter and for 16 people in couple relationships, though about 400 beds at the seasonal armory shelters were closed in July.

This week, as Carter weighs whether to issue the orders until adequate shelter is provided, he gained clearer authority to do so.

The 9th Circuit found that when there is no practical shelter option, it is unconstitutional to enforce Boise’s anti-camping ordinance against homeless people, including those who take “rudimentary precautions to protect themselves from the elements,” such as having “a blanket or other basic bedding” when they sleep in public.

The 9th Circuit functions as the highest-level court for the vast majority of cases in California and other Western U.S. states.

As for the proposed 600-bed shelter in Santa Ana, the property owners are not on board.

“We do not want to sell our property at any price, under any condition, because we fear the terrible implications for the surrounding area,” said Rob Neal, managing partner of the property owner, Hager Pacific Partners, in comments to the City Council on Tuesday.

Two months ago, he said, “we registered our opposition to being interested to selling the property. And I thought the matter was ended – until I got a call Friday morning,” he added.

Nick Gerda/Voice of OC

A portion of the proposed Santa Ana shelter site at 3100 W. Central Ave. on Tuesday, Sept. 4, 2018, seen through the outside gate.

City officials have not ruled out the possibility of seizing the private property through eminent domain if negotiations don’t work out with the owners.

“The courts have been calling on us to get somewhere. And tonight the action is, in essence, a step towards proactively binding the [city and county] to be able to work together to come to some conclusions and some solutions,” said Councilman David Benavides.

Several members of the public, including business owners nearby the proposed site, spoke against the location during public comments.

“I was kind of surprised that they would put something together without consulting anybody in the business community in the surrounding area,” said Brad Bollman, who owns Newport Laminates across the street from the proposed shelter.

Council members said there would be opposition anywhere they propose a shelter.

“This is a very very tough decision to make. No one can tell me exactly where we’re gonna put this shelter and everyone’s gonna be happy. No one,” said Councilman Juan Villegas. “Here, we’re presenting a solution.”

The only council member to vote against the shelter relocation agreement was Vicente Sarmiento, who said he wouldn’t support it unless the new shelter is located outside Santa Ana.

“We’ve certainly borne that burden for many years. I think it’s only fair that other cities within the central [OC homeless services region] do their fair share,” Sarmiento said.

Pointing to money the county has stockpiled that’s been meant to deal with homelessness and mental health care, Sarmiento asked of the county: “What’s going to compensate us for all the years and all the investment and the burden that we’ve inflicted on our residents, our businesses and children?”

The nearest parks to the proposed shelter – Centennial Regional Park and Adams Park – are each about a mile walk away. The nearest schools – Godinez Fundamental High School and the Mitchell Child Development Center – are about a 0.7 mile walk away.

The Courtyard – the existing downtown shelter the new shelter would replace – has sheltered 3,481 people over the nearly two years it’s operated so far, according to the county. At least 410 people have moved to more stable housing situation, county officials said this week.

In interviews this week, homeless people who stay at the Courtyard say they’re thankful it’s there as a resource to help get off the streets at night. At the same time, they said, it’s become overcrowded and people’s possessions – including cell phones – are often stolen.

The shelter is now down to three showers being shared by 400 people, said Tauna Ferentz, a homeless woman who was in front of the Courtyard on a recent afternoon. Some homeless people want to improve their lives, and some don’t, she added.

A homeless man who’s been staying at the shelter said “they’re doing a great thing” by operating the Courtyard, but that he doesn’t feel safe there.

There are a lot of difficult people inside, including people who like to fight, as well as drugs, said the man, who agreed to be quoted on the condition his name is not published.

“A lot of stuff gets stolen during the day,” he said.

While the 9th Circuit’s ruling this week limited anti-camping enforcement, it did keep the door open to some enforcement of anti-camping and sleeping laws, even if there is not enough shelter.

The protection against anti-camping enforcement doesn’t apply to people “who do have access to adequate temporary shelter…but who choose not to use it,” the Boise ruling states.

“Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations” could be allowed, along with laws banning “obstruction of public rights of way or the erection of certain structures,” the justices added.

Amid the shelter shortage, Santa Ana has, since February, issued over 100 anti-camping tickets and over 300 tickets for storing personal property at the city’s Civic Center, according to records reviewed by Voice of OC.

Contact Nick Gerda at ngerda@voiceofoc.org and follow him on Twitter @nicholasgerda.

The judge, David O. Carter, pointed to Santa Ana and Anaheim residents and businesses who, he said, are grappling with hundreds of homeless people who formerly lived at the Santa Ana riverbed but now are in their cities due to a shelter shortage.

County officials and lawyers for homeless people said they planned to work over the three-day holiday weekend to help ensure any homeless people who want motel rooms before the Tuesday deadline can quickly move into them.